Reported in : AIR1937Cal432
.....the learned judge should then have directed the jury that, if they were satisfied that he was intoxicated at the time, they should take that fact and the other facts into consideration in determining whether they were satisfied that the intention alleged by the prosecution had been made out. this was not done and we really do not know upon what view of the facts the jury brought in a verdict of guilty under section 307. we have reached the conclusion that this failure to direct the jury properly has not led to any miscarriage of justice so far as the conviction under section 326 is concerned. it was not necessary for the prosecution to establish any intention here. it was enough to show that the appellant knew that he was likely to cause grievous hurt. in order to succeed on this point, therefore, mr. guha would have to satisfy us, that a properly instructed jury would be prepared to hold that a sober man, who fired three shots into a woman, would not know that he was likely thereby to cause grievous hurt. in my opinion it is quite impossible to suppose that any jury could come to such a conclusion. we are not prepared to interfere with this conviction.3. the learned.....
Tag this Judgment! Ask ChatGPTReported in : AIR1937Cal454
1. in this case the appeal was filed on the proper date but subsequently there was an application filed for substitution of the heirs of one of the deceased appellants. the application was filed on 5th april 1937 which was the first date after the close of the easter holidays on which the registrar was sitting. the offices of the court however re-opened on 3rd april 1937. the question is whether the application should have been filed on 3rd april and whether as it was not so filed it was time-barred. here there is no question of the filing of the appeal which might be done in the office. the question is with regard to the filing of an application which had to be moved before the registrar. as a matter of fact the registrar sat for the first time after the re-opening of the court on 5th april 1937. therefore in our opinion limitation should run from that date. as the application was filed on 5th april 1937 it should be held to have been filed within time: re. k.p. sinha v. jatindra nath biswas (1936) 41 c w n 492.
Tag this Judgment! Ask ChatGPTReported in : AIR1937Cal513
.....upon that alleged right. instead of doing that he invented a purely imaginary right which the opposite party never claimed, a right to discharge water over the petitioner's land in any direction he pleased simply because his own property was slightly higher, such a right could not be made the basis of any order under section 147.2. then the petitioner contended that there was no likelihood of a breach of the peace and i do not suppose that there ever was. the learned magistrate entirely failed to come to any finding on that point. he merely discussed the question as to the probable existence of an epidemic. that was entirely irrelevant and would not give him any jurisdiction to make the order. finally the magistrate has ignored the proviso to sub-section (2). he has failed to find that the opposite party did actually discharge water in this way within three months of the institution of the case. for all these reasons we must make this rule absolute. the order made by the magistrate is set aside.derbyshire, c.j.3. i agree.
Tag this Judgment! Ask ChatGPTReported in : AIR1937Cal514
.....been done in ordinary course under the law. the presentation of the appeal to the court of the district judge was in accordance with law; but by act of the party concerned sanctioned by this court, it was transferred to this court. the appeal must in the circumstances by operation of law be taken to have been presented to this court. the party wanted to have his appeal heard by this court, and the court-fee payable for an appeal to be heard by this court is the fee prescribed for a memorandum of appeal presented to this court, and not the fee prescribed for a memorandum of appeal presented in the court of the district judge, and which was to be heard by this court. it may be mentioned that i find no reason to differ from the decision given by two different registrars on the appellate side of this court, on two previous occasions, in cases similar to the one now before me.2. no authority, statutory or otherwise, could be found in support of the contention urged before me on behalf of the appellant whose appeal has been transferred to this court for hearing on his own application; and the ground that was pressed before me was that a fiscal statute should be interpreted strictly.....
Tag this Judgment! Ask ChatGPTReported in : AIR1937Cal547
.....of 1936, by which he reversed the order of the subordinate judge, 3rd court, midnapur, passed in an execution case under section 47, civil p.c. the facts of the case lie within a short compass and are not in controversy. the decree-holders started a mortgage suit against six defendants in the court of the subordinate judge at midnapur, and the present appellant who was defendant 6 in the suit was made a party on the allegation that he was a transferee of the mortgaged property subsequent to the mortgage. the trial court dismissed the suit on 22nd january 1931, and against that an appeal was preferred by the plaintiffs, which was resisted by defendant 6 alone. the district judge on appeal reversed the decision of the trial court and gave the plaintiff a decree on 30th august 1932. the material portion of the decree stands as follows:the judgment and decree of the court dismissing the suit are reversed and it is ordered that the original suit be decreed against defendants 1 to 6 with costs; it is also ordered that in the event of defendants 1 to 6 failing to pay the decretal amount with interest during pendency of the suit at the bond rate on the principal amount within two months.....
Tag this Judgment! Ask ChatGPTReported in : AIR1937All694
.....so far as the lower court is concerned on certain matters which are to be decided between them. that may be so, but we are of opinion that that fact alone does not make this order amount to a decree. this question has been twice before benches of this court and on each occasion the decision of this court has been against the claim of the appellants. in bharatendu v. yaqub (1913) 35 all 159, there was a letters patent appeal against the decision of piggott, j., who had held that after a preliminary decree had been passed in a partition case, it is open to the trial court to pass an order amounting to a decree which is not a final decree. the letters patent bench disagreed with that contention and held : 'the code of civil procedure contemplates one preliminary decree and no more.' the matter came before a bench of this court in f.a. no. nawab hassan v. syed hasan murtaza first appeal no. 447 of 1932, in a similar case in a partition suit where a preliminary decree had been passed and a bench of this court held as follows:no final decree has yet been passed. the order which is impugned in this appeal is an interlocutory order in which the court has adjudicated upon certain.....
Tag this Judgment! Ask ChatGPTReported in : AIR1937Mad816; (1937)2MLJ559
.....upon the joint family. the learned trial judge has come to the conclusion that consideration was paid, with which we unhesitatingly concur. the facts may be shortly stated. a person by name chockalinga had three daughters by his first wife but no male issue. thereupon he adopted the first defendant as his son. subsequently he married a second wife and the second defendant was his son by her. egappa chetty the mortgagee is the husband of one of chocka-linga's daughters by his first wife. the mortgage was granted in december, 1916, and it was assigned to the plaintiff, a relation of the parties, in january, 1924. egappa died about the year 1926. the suit was filed in 1927 and was heard in 1930. chockalinga was carrying on a family trade, which upon his death devolved upon his sons, and it is not disputed that on the date of the mortgage bond, the first defendant was conducting a family trade at two centres, namely, devakottah and colombo. there is a recital in the deed to the effect that the amount mentioned as the consideration, namely, rs. 5,000, was borrowed for the purpose of discharging the debt due by the family firm at colombo. at the trial the account books of egappa.....
Tag this Judgment! Ask ChatGPTReported in : AIR1937Mad807; (1937)2MLJ381
.....that ex. a itself is the original as it contains the initials of the defendant. for this purpose he relies on section 62 of the indian evidence act, section 62, explanation 2 of the act runs thus:where a number of documents are all made by one uniform process, as in the case of printing, lithography, photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.3. the contention is that ex. a and the letter sent to the government were all made by one uniform process, namely, by typing on a type machine, and as it contains the initials of the4. president, ex. a itself is also the original. it seems to me that this contention proceeds on a misapprehension of the said explanation. it is no doubt true that the contents of both the letter addressed to the government and ex. a were made by one uniform process, namely, typing but without the signature of the president they cannot constitute a letter and therefore a document within the meaning of the said explanation. it is after the contents of the letter had been typed that the defendant signed the document which.....
Tag this Judgment! Ask ChatGPTReported in : AIR1938Mad117
.....these are two suits brought and or the provisions of the fatal accidents act 1855, and by consent of all parties have been tried together as the facts in regard to both claims are identical save in respect of the damages which are claimed. in c. section no. 96 of 1934 the plaintiff is the widow of one venkataswami naidu. in c.s. no. 445 of 1934 plaintiff 1 is the widow and plaintiffs 2 and 3 are the minor children of one saman. the claims in both suits are for damages representing the loss of maintenance which the respective plaintiffs allege that they have sustained on account of the death of the two deceased who were the wage-earners of their respective families. there has been a considerable body of evidence given in these suits, none of which is very reliable and all the witnesses exaggerated in their evidence, what, i have come to the conclusion, were the real facts. 1st defendants own land in walltax road upon which is erected a railway station and permanent way. this is bordered on wall-tax road by a wall of the total length of about 3,000 feet running approximately north and south. so far as this case is concerned, a small portion only of that wall is affected, some.....
Tag this Judgment! Ask ChatGPTReported in : AIR1938Mad283
.....19 a.i.r. mad 164 . a similar view was taken by venkatasubba rao j. in seshasayee v. govinda pillai (1935) 22 a.i.r. mad 612 where the learned judge observed thus:the applications mentioned in section 78 must; under the act be to a district court and there ib therefore no reason to hold that they are not proceedings in a court of civil jurisdiction within the meaning of section 141 mentioned above. if that be so, the provisions of order 21, rule 97, 98 and 99 become applicable and the court can in virtue of the power conferred by them make the investigation.4. it will be noticed that the application in this case was made by the petitioner under order 21, rule 95 and 98, civil p.c., therefore the question whether the respondent is resisting possession at the instigation of the defaulter or on her own account has to be gone into. her case is, she is in possession of the estate on her own account. it is now settled law that there is nothing in the provisions of the revenue recovery act which would preclude a real purchaser from contending that the purchaser in whose name the certificate was issued under section 38, revenue recovery act, is only a benamidar. the decided cases show.....
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